 Good day, ladies and gentlemen, and welcome to today's webcast entitled Fair Use and Research Librarians. To submit a question or comment at any time during the webcast, please click on the Ask a Question button at the bottom of your screen. Simply type your message into the box and click on the submit button. At this time, it is my pleasure to turn the floor over to Brandon Butler. Sir, the floor is yours. Hi everybody, all many, many of you, welcome to the debut webcast for the Code of Best Practices and Fair Use for Academic and Research Libraries. My name is Brandon Butler. I am ARL's Director of Public Policy Initiatives, and I'm lucky enough to be one of the co-facilitators for this code. And the first thing I want to say is please send us your questions. You can do that using the web interface that you're looking at right now. And at the end of the presentation, if we get time, we will work through as many questions as we can, but we have a lot to cover. So, given how many of you there are and how much we have to get through, we're probably not going to get to all the questions that we get, but even if we don't get to your question, we are going to hold on to all of the things that you tell us and use that to guide our education and outreach efforts going forward. We have a series of FAQs on our website and all of that stuff is going to evolve and grow with your help. So finally, you can always reach out to me personally. My email is brandon at a-r-l-dot-o-r-g with your questions and concerns about the code. I also want to acknowledge up front that this work was done with support, generous support from a grant from the Andrew W. Mellon Foundation. Work has been done in collaboration with two Director of the Glushko Samuelson Intellectual Property Law Clinic at the American University Center on Fair Use Law and an overview of how the code has been grounded in these powerful legal principles. And thank you all for, I don't know what the expression is, but I'll reveal my age and say, tuning in, widely understood and recognized about the copyright law really exists. My mess with the slides here, there, promote culture and learning. So we can see that the core is very, very mission of academic libraries and librarians. They share a great deal by rewarding creators and encouraging actually get in the way of, in our copyrights that are referred to generally as 109 and 110 and 121, about which I'll be speaking in context in a moment, the general category of limitations and exception works in ways that are being, in passing that the Supreme Court had clearly identified this Fair Use Doctrine of oppression imperatives that received constitutional expression in the, the doctrine was first articulated way back in the, it ran quietly in the back, a safety valve in the copyright system, and as it had developed in the courts was, was quietly and, and in a very sort of 107. Now we know it was a source of a good deal of frustration in the years after 1978 when the new law took effect, it was because various communities of practice like libraries couldn't easily reformulation as a way of predicting or understanding when things they did would or should be considered as a, a new tack in the years before when the Supreme Court specifically, I am going to describe two, those are the two questions that courts can ask. So they are the two questions that a user considering whether or not a particular user should be considered fair can ask in advance of making that, whether the use is transformative. Does it add value to the metaphor and new goal? And the second is whether or not the amount of material used is appropriate to that transformative insights and tremendously to our ability to make forward judgments about likely outcomes in Fair Use Analysis, which were difficult or impossible to make under an approach to Fair Use Founded exclusively on the four factors. Okay, it's none of them about education and library. This new transformativeness based approach to Fair Use Analysis works. And we know something else, and we know this by virtue of the work of diligent IP scholars who have poured 50 plus years looking for practice communities who engage in what uses should be considered in a new context site is the immediate springboard for the codes of best practices and Fair Use that we've been working with different over the last six or seven years at American University are concerned, including, of course, the one that we're talking about today. And with that, I think I will turn the floor, if there could be said to be the floor here over to my wonderful colleague, Pat Osterheide of the Center of Social Media, to talk more about the best practices codes, where they come from and what they do. Thank you very much, Peter. It has been a great, great privilege to work with a variety of different communities of practice as they faced and to first learn about the problems that they faced in applying Fair Use and then facilitate the creation of a code of best practices that, in general, has made it much easier for those people to responsibly use Fair Use. And you see on this slide a number of the communities that we have worked with. I'm going to take you through the first community, which has had the longest experience with those codes, which is the documentarians. When we first began working with them in 2004, they found themselves bound to buy in large misunderstanding of copyright law, in which they believed that Fair Use was way too risky for them to even think about. And they also faced a situation where their insurers, which were required for them to get television airing, were not accepting Fair Use claims even when they dared to do so. So they were simply ruling out large areas of reality in their attempts to make films. Once they created a code of best practices, it was surprising to them what happened. It certainly was a surprising to us how quickly it happened. Within three months of the code being issued, the three films that heavily used a lot of Fair Use went to Sundance and got picked up for airing. Probably the single most biggest change for them is that within a year, every insurer of four errors and no missions accepted Fair Use claims. And they now do so without accepting any incremental costs. So in the case of the document, as filmmakers, you have very clear examples of why it's important to use these rights. And insurers have made a very clear statement that they believe that given the code, they have lowered their risk. So sorry, I'm learning how to do my slideshows. All of these codes have had direct effects on people's ability to use their Fair Use rights, and therefore direct effect on their ability to meet mission. And best practices have been united by their approach, which is that none of them are guidelines, none of them are rules. They assert principles in situations. So they take a situation that is common to the mission-driven practice of the field, and they assert why Fair Use applies here. And then they say where it stops and where, what the limits are. And the goal is to encourage people's case-by-case reasoning, not give them rote answers. And with that, I'd like to turn it back to my legal colleagues, or not. Sort of normal day-to-day, right? They don't tell you how many copies can you make, or where can you put them, and so on. And that leaves people wondering, what can I really do? And when people are insecure for any kind of two, or do I know that this person is litigious, obviously any rational person should have people sort of, you know, guided by your values, and these base partners, we wouldn't have gone forth with this project. We weren't, you know, going out on a limb, going too crazy, came in at the end of the day to take a look at it and say, it's within the bounds of reason, within the bounds of what Iraq could argue in terms of Fair Use. And so we know that the lunatics have not taken over the asylum. We have the word of lawyers that this is all within reason. But it's ultimately motivated by librarians, and what the important new input for this risk management will probably not know at no time soon, considering what our cost of not doing anything. What is our core value as a librarian, and what do librarians, suit of the views of librarians as you're making these quick thought when they could think for, and going forward, here, Yazi and I, where the two lawyers, we can work through the principle we further ado. I'll turn it over to Peter. I have questions before I get us started with principle number one. One is a descriptive one, which may anticipate questions that some of you have, and that is what do we mean when we say, ends of consensus, that Brandon described. I think it's fair to institutions, if not all, community broadly appropriate. That even librarians who work in institutions where they have been told that for whatever reason, they can't fight. And the other thing I want to say is a comment in a different register, description of the principles and as you then follow Brandon's good suggestion and read the code, may be disappointed. You may find that the assertion, the entitlement to take advantage of fair use in this code are as bold or are as broad as you might have expected or might have liked. And that is, of course, again, the co-associated limitations the community. And one thing we knew going in and had reinforced for us again and again throughout this exercise is that the library community and librarians in particular as individuals are great respect. I think in a way it's rounded not only in a situation of copyright. I think it's that circumstance which although it may make some of the principles seem less bold than they might otherwise be, also makes them more robust. Let me start with the first. And the first principle is one of the ones that was discussed and I think in every group of great interest it's connected very much with as Brandon mentioned a moment ago of new technology. And that is the question of what librarians can do warrant in fair use to support teaching and learning activities by providing digital access to library materials. And this includes e-reserves and course sites and streaming video and a number of other topics which are of course very much in the news and sometimes even controversial. I want to emphasize around this principle we're limited to the digital environment. We haven't chosen or the library community didn't choose in devising these best practices to revisit for example the issues surrounding physical course back. There was one of the topics we're going to discuss today through a principle out that these limitations principle statement. The principle which in this case is that it's fair use to make appropriately tailored course related content available to enrolled students on digital networks. That principle complete doesn't live if you will without the associated avoidance of wherever possible of content that was produced specifically for the educational market. So in terms of when it can be accessed, available and the pet attribution wherever possible and I'm going to pause for a moment on the last because there is in the group copyright law of course doesn't speak to the issue of attribution. It wasn't a reason to exclude it from this integrated statement of principles and limitations because after all this is once again a statement of buy and poor librarians not an expression of free floating copyright ex-protailed appropriate attribution. And we did here and in connection with the principles that we'll discuss in the moment this so-called enhancements the of an argument for fair use which nobody regarded or most people didn't regard on some kind of articulated rationale. Periodic updating of online materials to ensure their continual as are the limitations to strongly enough subscribe to to deserve a place in this document. We had heard from people that they're at the library, you know, come and see more of what these sort of interesting and unique things that we have available here. And so librarians felt strongly that this is something we should be doing. You know, in the light of mass digitization and mass access to sort of popular stuff, hugely popular practice and yet something that was done kind of with with a heavy heart due to fear about fair use on William Butler Gates. So just to get that out, that's a really paradigm case of what we're thinking. He sheds light on his work by putting it all together, gives context, it's heavily curated, it's wonderfully interactive. These projects are so valuable and so clearly fair. A lot of value added here just to see the appropriate amount. It's kind of an easy one. It was nice to have an easy one after he reserves which is such a. Precision for preservation of at risk items. And when we began this project in our initial conversations with librarians, we weren't sure how much of an issue this was going to be because there is, after all, as I pick provision section 108 in the Copyright Act that carves out a pretty chip in the items preserved. But what we discovered when we began to tell performance in the library community is that in fact this was indeed a recurrent problem situation precisely because the limits of section eight are so narrowly defined and precisely because the library mission to preserve and maintain knowledge often would be served by digital preservation of material that isn't technically yet falling apart as section 108. It's completely clear of the other specific exemptions. Exemption here, section 108 for preservation is supplemented in section 107. That which you cannot do technically under section 108, you may still be able to do without liability. What we discovered was that there was broad consensus within the library that regardless of the, it should be considered fair use section items, they aren't yet deteriorating, could be for two purposes. It could be simply to stabilize this body of knowledge and it also could be to serve individuals, researchers and others who were interested in the material so that by looking at a digital surrogate copy, they could save wear and tear on the increasingly fragile original. And as I say, this was a very, very strong consensus, but once again, the strength of the consensus incorporated the associated limitations and some of them are significant. In order for the principal to operate, limitation should be imposed on the material. Attribution was, and this important once again as well, their enhancements. Sometimes, although not always, libraries may want to consider using technological protection measures, purity, patient items that are made available as surrogates. We ought always to consider providing a mechanism by someone who objects, mechanism for someone who objects to a work in which they believe they own copyright being made available on this base and here before going back to Brandon. As you listen to us today and as you read the code thereafter, you'll see that there are a number of place, the librarians with whom we consulted felt that sometimes it might be a good idea to use some kind of technical security. And of course, many of us are very skeptical with good reason. Nevertheless, this was the view of the library community and it is faithfully recorded here. On the support page for this document, we have a technological security measures that might be used by libraries that were interested in following this line of suggestion. And the point I want to underline, because less intrusive and less inconvenient forms of technological protection than the right circumstances, may be an effective technological protection likewise and so on and so forth. In this document that every time there's a suggestion that it might be appropriate to consider using technological protection, that necessarily means 128-bit encryption. Brandon? We were clear and wanted a library to automatic to keep the lines of communication open. Oh, and libraries who have had these mechanisms in place. Or go ahead and use it. I just wanted to be reassured about why you're doing this, where it came from. That's the only thing that we talked about early on and they're unified by a theme. They're things that are typically rare, unique even, one of a kind. And so putting these things together is not a thing that libraries have always done and librarians felt that continuing in a very noble tradition. You know, we have our limited find unused copies on the market at reasonable prices. You know, that's a real red flag because, again, there you're talking about competing with somebody that's out there on the market. And that's something that libraries have never done. So that was something that raised a red flag for folks. And there were a few other interesting nuances. And again, I can't tell you enough to read the codes what's in there because you really have to be applied. There's no simple way to describe each one of these things. When we did the initial interviews trying to isolate what the librarians faced were, we discovered that there was quite a lot of, and even occasionally fear, around the question of how far libraries could go to make collection materials successfully students with print disability through copying them into new formats. So we're once again, the Copyright Law contains a provision in Section 121, the so-called Shafi amendment, that for these practices. The trouble is that although librarians, Section 121 broadly, others whose opinions happen to be taken into account like the publishing industry, read it very narrowly. So it simply isn't clear at the end of the day how much or how little copies to print disabled students is really covered. One thing we know once again, as I said before about Section 108, is in 107 and fair use complement Section 121. That even in situations where Section 121 doesn't reach, the fair use doctrine may apply. And that was the conclusion, very, very strongly held. Unless you can get fully accessible copies from accessible formats on request from disabled students, and in order to avoid the cruel inefficiency and delay which is involved in the right to retain those reproductions for use in, that is to say, disabled patrons, are ones that you can see that users, the beneficiaries of this kind of system need to be instructed about their rights and responsibilities, the things they can and can't do with the materials they receive. Limits on the material made available could be appropriate. If something is a three-hour reserve book in its physical form, then perhaps some time limitation, although not necessarily a three-hour limitation, may be appropriate when that same book is made available to blind patrons, for example, as a simple matter of services offices of their universities. Because in most institutions, these are shared responsibilities. Under the enhancements, there's some discussion, again, of the possible use of technological protection measures in certain circumstances. Again, it arose, will probably be better, the more widely known library service. Submitting their dissertation, they're ready to graduate every third-party piece of it. Get out the editor's pen and start cutting out still frames from their thesis on film history or cutting out English literature or whatever, and people freak out, and they suddenly change their research. Their research choices are incorporating material into their scholarship. You know, look, if you are doing transformative work, if creating the idea, commenting, criteria used to write it, then it's a fair use to deposit it. And it's a fair use for the library to share it in those libraries where we wanted to reflect that. And the rights holder comes forward. There should be a fairly easy way to fair use and let's work for working out that kind of conflict. A lot of the principles, because really, libraries are so often facilitators. It's important when libraries are facilitating things like depositing work, or when a professor is using an eReserves or course management system, helpful for libraries to provide education, use their rights, and use library materials response sort of above and beyond. We know that not every library can have a copyright lawyer. It's good to do it, but these are... Are things that, in one way or another, have been around in the library where people have had a good deal of time to think about them was in the physical world, and even now, over several decades, as they were presented in the digital space. One that a few institutions have begun to confront, although many others have yet, which the librarians not yet addressed this question, their ordinarily broad unanimity in support of an approach that has been or is being followed by the relatively few who have, and that's the sumptive research. Let's suppose that I'm a scientific researcher who wants to model, the uncle mouse, for example, is used, reported in major scientific journals. Well, the best way to do that is to create up hits, and that number of hits will give you information, information separate and apart from whatever the contents of the journal articles that were included in that database made of 20th century novels that are being scanned for some other marker, the frequency with which a character name is used, or whatever, generally being referred to under the rather icky name of non-consumptive research. We don't have a better term for it, and so that's the one that's been used here. The library community was very, very strong in its consensus that it's very use for libraries develop such databases kind of non-consumptive analysis. There are some very important integrated limitations of which, of course, the most important is that when the form of non-consumptive research that was considered and endorsed by the librarians who thought about this principle were of course reference uses and time honored example of non-consumptive research in the library setting. The limitations are worth looking at. If possible, which database being a fair use will be. Likewise, the libraries get together and more libraries can create comprehensive databases. And then everyone else in the room would have to sort of think in the abstract, well, we're not doing that yet. That's pretty cutting edge. That's pretty interesting. What's the right way to do it? If I were to do it, would I do it that way or would I do it a different way? So we had some really fascinating and wide-ranging discussions about this strongly that it is fair use to create these sort of collections of websites from the internet. And you can imagine the sort of underlying intuition here that the internet libraries are gonna continue to cross-section of our cultural record and our cultural sort of cutting edge area and rights. How can you talk about the Arab Spring without having sites on hand and without collecting sites before they disappear that accessible and available in the future in ways that their current creators really frankly didn't have in mind. When I make a website as part of my protest movement, I'm trying to get people on the street. And in 20 years when that movement is gone, it will still be interesting to look at that website. And there was a really powerful feeling in the folks that we spoke with that did not do their job. That was a really powerful case for folks that's out there. Yes, this is the part where it's terribly important how you use the code. Because fair use is like a muscle. You use it or you lose it. And practice, the practice of employing fair use will change the practice of the field. So we're happy to tell you that there is lots more information available to help you both use the code and to tell other people about the code. We've made a video for you. We have, we've made slideshows. We've made FAQs. The FAQs will grow with the questions that we are harvesting now from the event. And you have some excellent questions on the site. And we've cross-posted this material at three different websites, all of which you have the URLs for on the code itself. If you want to have a deeper look at how fair use has evolved to make transformativeness in this contextual question so central, you could read the book that Peter Yassi and I have written We Claiming Fair Use, $12 on Amazon. And we would love for you to share this information with others. If you want to use it whole, just go ahead and do that. Otherwise, employ your fair use rights when you excerpt. And we'd like to add another special thank you to the Andrew Mellon Foundation and to Research Librarians everywhere. Thank you all. Thank you. And let me add one thing, and that is that as you'll see when you go to the support pages are going to be going out over the next few months around the country doing events at libraries in different regions, which from that region who wants to attend and which I think in every case now will also be webcast. And we'd really encourage anyone who wants to know more about this document and in particular who wants to talk because we'll have lots of time then to talk. We won't have an hour. We'll have three or three and a half hours to talk. Who wants to talk about what could in an institutional setting? We really would encourage you to. And we can talk about things that we're doing in your region. So we have a lot of interesting, entire PDF on your university's LMS. You can do anything you want with this PDF. It's out there and it is. We want you to download it. We want you to upload it. We want you to send it and do whatever you want with it. It's wide open for you. Money, let me know. Maybe we should talk about a partnership. But it's not legal advice. How do we bridge that gap? Are we worried that librarians are going to take our advice? Why did we say it's not legal advice? And I don't know, Peter, maybe you can answer that question since you've been giving this kind of not legal advice. Is to advise lots of people whether or not they've been about legal principle into their own decision making process wanted to be clear that even if you should recognize yourself on this document, we aren't speaking directly to you as your lawyers. We're giving you general advice. Advice we hope you can use to establish questions, arguments, and presentations to the decision makers in your institution who may be in them's different levels of risk tolerance. Any particular problem, much less once and for all. But we really hope that it will be a helpful input for everyone. And it looks like we've come to the end of our time and get much more. And we hope that we will be in touch with you in the future more about this code and about fair use. Your answers reflected there. And if not, please be in touch. That's exactly right. We'll get an archive of all these questions. And they are going directly into the hopper. And we'll go directly onto the FAQ in some way or shape or form in the coming days. So thank you for your input. And I hope everybody has a great afternoon. Thank you. That's the end of today's webcast. We thank you for your participation. You may now disconnect your lines and have a great day.